Stanley and Secretary, Department of Social Services (Social services second review)

Stanley and Secretary, Department of Social Services (Social services second review) [2020] AATA 438 (11 March 2020)
Division:GENERAL DIVISION
File Number:2019/1821
Re:Ms Lita Stanley
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO Member
Date:11 March 2020
Place:Melbourne

The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Ms Anna Burke AO Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – from dysgraphia, autism spectrum disorder, gender dysphoria and anxiety – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms Anna Burke AO Member
11 March 2020
INTRODUCTION

Ms Stanley (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Human Services.
Ms Stanley lodged a claim for the DSP on 18 September 2017. On 16 April 2018, an employee of Centrelink decided that Ms Stanley was not entitled to a DSP as she did not meet the requirements of the Act. On 16 April 2018, an Authorised Review Officer (ARO) of Centrelink affirmed the decision made. Ms Stanley sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 27 February 2019.
The application was heard on 12 February 2020. Ms Stanley was self-represented and Ms Cailin Farrell, solicitor of Sparke Helmore Lawyers, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Farrell.
THE ISSUES IN CONTENTION
The issues in contention are whether Ms Stanley:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a fully diagnosed, treated and stabilised condition or conditions which result in impairments attracting 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)has a continuing inability to work.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999, Ms Stanley’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 18 September 2017 to 18 December 2017 (the qualifying period).
BACKGROUND
Ms Stanley is 31 years of age and currently lives on her own. Ms Stanley’s birth name was Dylan and her original application was made in that name. She now identifies as a female. Ms Stanley completed her intermediate Victorian Certificate of Applied Learning with the support of integration aids, and has subsequently completed her Bachelor of Arts. She had hoped to progress to an honours year, but she has been unable to realise this ambition. Ms Stanley worked in customer service in the liquor department of a large supermarket from 2006 to 2015 but discontinued work due to her increasing anxiety and inability to deal with social settings.
Ms Stanley was previously in receipt of the DSP from 2008 for Asperger’s syndrome and dysgraphia. At some stage her payments ceased as she was undertaking full-time work.
On 18 September 2017, Ms Stanley made an application for the DSP, citing her medical conditions as dysgraphia, autism spectrum disorder, gender dysphoria and anxiety.
On 3 April 2018, Centrelink conducted a face to face job capacity assessment (JCA) with Ms Stanley. The JCA assigned a total impairment rating of 5 points based on her claimed conditions:
(a)dysgraphia, learning difficulty – Table 8 – 5 points;
(b)anxiety – Table 5 – nil points;
(c)autism spectrum disorder – Table 7 – nil points; and
(d)gender dysphoria – Table 5 – nil points.
On 3 November 2018, on internal review, an ARO of the Department affirmed the earlier Centrelink decision that Ms Stanley’s total impairment rating was 5 points, comprising of:
(a)dysgraphia, learning difficulty – Table 8 – 5 points; and
(b)anxiety, autism spectrum disorder and gender dysphoria – nil points as they cannot be considered permanent.
On 27 February 2019, Tier 1 affirmed the decision of the ARO to reject Ms Stanley’s DSP claim. Tier 1 assigned Ms Stanley an impairment rating of 10 impairment points, comprising of:
(a)dysgraphia, learning difficulty – Table 7 – 5 points and Table 2 – 5 points;
(b)anxiety, autism spectrum disorder and gender dysphoria – nil points as they cannot be considered fully treated and stabilised. The Tribunal noted:
Mr Stanley has had issues with reading and writing as well poor coordination since childhood…. The Tribunal concludes that these conditions can be considered to have been fully diagnosed, fully treated and stabilised, and there is a mild functional impact on activities using hands and arms, as Mr Stanley has difficulties doing up buttons. The Tribunal also concludes there is a mild functional impact resulting from a neurological or cognitive condition as Mr Stanley has some difficulty in understanding complex instructions. The Tribunal considers it is appropriate to award an impairment rating of 5 points under Table 2 - Upper Limb Function and 5 points under Table 7– Brain Function.
Mr Stanley has been diagnosed with gender dysphoria, ASD and anxiety. He commenced seeing a psychiatrist for these conditions in September 2017 and commenced seeing a clinical psychologist for help with his ASD symptoms and anxiety in June 2018. The Tribunal concludes these conditions can be considered to have been fully diagnosed. However at the time Mr Stanley made his claim these conditions were not fully treated and stabilised, and therefore an impairment rating is not able to be signed for these conditions.
On 2 April 2019, Ms Stanley sought a review of the Tier 1 decision by this division of the Tribunal, stating in her application: I do not think some of the effects of my mental disabilities was taken into consideration such as being very suicidal and the effects of being a rape victim.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for the DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)The person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 6(7) of the Impairment Tables states “reasonable treatment” for the purposes of s 6(6) is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
The determinative issue in this review is whether, during the qualifying period, Ms Stanley suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS determination) sets out a number of exemptions to the general requirements that a person must participate for at least 18 months in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4)This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5)This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, and additional medical reports that were lodged by Ms Stanley.
DOES MS STANLEY HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for the DSP, in the first instance, a person must suffer from an impairment.
The Respondent accepts that Ms Stanley is suffering from dysgraphia, autism spectrum disorder, gender dysphoria and anxiety. The Tribunal finds that Ms Stanley was living with impairments during the qualifying period and therefore meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MS STANLEY HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Ms Stanley argued fundamentally that the decision was incorrect as she had been entitled to the DSP previously and could not comprehend why she was now not eligible. Particularly as her claim was in respect of the same conditions she had been suffering since childhood, and which had previously been accepted as fully diagnosed, treated and stabilised.
Ms Stanley advised the Tribunal that she had come off the DSP as she had found work, but she had been unable to maintain her employment because of her numerous disabilities. She stated that she was currently on Newstart allowance and was struggling financially to survive. Ms Stanley argued that all her conditions were fully diagnosed, treated and stabilised during the qualifying period. She argued that any current treatment was not going to improve her functionality but was assisting her with day-to-day survival as she suffered severe lifelong disabilities, and there was no magic needle to improve her complex conditions.
Ms Stanley advised the Tribunal that she believed her disabilities were severe and considered the functional impacts of the disability fell under Table 5 – Mental Health and Table 7 – Brain Function.
Dysgraphia
Dr Gillian Cameron (child and adolescent development specialist) in a medical report dated 2 November 1994 identified that Ms Stanley had features of attention deficit disorder.
Ms Kate Bain (occupational therapist) in a report dated 11 June 1996 summarised Ms Stanley as having a very pleasant personality, having considerable difficulties with activities requiring gross and fine motor coordination and difficulty in focusing attention.
Ms Lisa Decker (senior speech pathologist) in a report dated 4 August 2003 noted Ms Stanley had been referred by the school due to concerns regarding oral language development, and the findings of her assessment indicated Ms Stanley may experience difficulty in the classroom with both oral and written language.
Miss Tanya Van Elst (speech pathologist) in a report of 8 August 2017 compiled after assessing Ms Stanley’s assistive technology needs, stated Ms Stanley’s dysgraphia affects her processing of English-language including grammatical structures, and sentences/paragraphs structures.
Dr Porpavai Kasiannan (psychiatrist) in a report dated 13 September 2017 summarised:
Lita is a twenty-eight-year-old transgender female with history and presentation consistent with Gender Dysphoria, Autism Spectrum Disorder and anxiety disorder. The anxiety disorder is closely linked to both gender dysphoria and ASD. She also has significant sensory issues, social communication issues and fine motor coordination problems which are related to the ASD. The gender dysphoria symptoms are consistent with DSM-V diagnosis of gender dysphoria and she fulfils WPATH (world professional Association for transgender health) criteria for hormone therapy for the same.
Ms Laura Cook (clinical psychologist) in a report dated 16 August 2018 diagnosed Lita as currently meeting the criteria for autism spectrum disorder and dysgraphia; recommending that Lita continue treatment in order to improve her understanding of her own and others’ emotions.
Ms Cook in a subsequent report dated 6 February 2020, for these proceedings, indicated that Lita currently meets the criteria for autism spectrum dysphoria/dysgraphia, and that Ms Stanley is continuing to put in place strategies and alternative technologies to ameliorate the difficulties with both these conditions having being fully diagnosed, treated and stabilised. Ms Cook assessed Ms Stanley as reaching at least 20 points on Table 5 and Table 7 of the Impairment Tables.
Ms Stanley advised the Tribunal that she had experienced difficulties with the English language for as long as she could remember and that she had been diagnosed in 1994 with learning difficulties. She stated that for all of her schooling she had assistance to complete tasks, as she had severe difficulty with coordination and comprehension.
Ms Stanley advised the Tribunal that she had completed her Arts degree with a great deal of assistance from the disability support officer at the University, and it had taken her an extraordinarily long time to complete her degree.
At the hearing, Table 7 – Brain Function of the Impairment Tables was explored in respect of the functional impact of Ms Stanley’s mental health condition, with a focus on whether or not she has a severe impairment:
Table 7 – Brain Function – 20 points
There is a severe functional impact resulting from a neurological or cognitive condition.
(1) the person needs frequent (at least once a day assistance) and supervision and has severe difficulties in at least one of the following:
(a)memory;
(b)attention and concentration;
(c)problem solving;
(d)planning;
(e)decision making;
(f)comprehension;
(g)visual-spatial function;
(h)behavioural regulation;
(j)self-awareness.
Ms. Stanley gave evidence that during the qualification period:
·     her memory was and continues to be extremely poor; that she had been advised of a phone application (app) which was a life line stating that fundamentally if her phone broke “she would be screwed”. The app advises her of everything, including when to get up, when to take a shower, what tasks she has for the day and any upcoming appointments. She stated she relies upon the app as she would another person to ensure she can manage on a day-to-day basis;
·     she had no ability to concentrate on tasks, had a very low attention span, stating that she might have watched YouTube videos and read Japanese comics which would take her considerable time to complete; that when she was studying she did a subject per semester and it would take her a whole day to follow one lecture;
·     she had great difficulty problem-solving unless she had come across the problem before and relied upon her phone app for regular assistance with day-to-day activities;
·     her planning for activities was very poor; she needed to ensure everything was done through a rigorous routine and if it is thrown out it could take her a number of days to recover;
·     she had great difficulty with decision-making and prioritizing; stating that taking out the rubbish or saying good-bye to her dying grandmother was of same priority to her; she stated she had made numerous poor judgments which had resulted in negative outcomes for herself and others;
·     she had a great deal of difficulty with comprehension and was unable to understand basic instructions; advising the Tribunal that when she had worked as an Uber driver it had been very simple to follow the app but even then she had difficulties with this work and discontinued;
·     she had difficulty with visual spatial functioning but this was not significant as she still managed to drive but only for short distances in a known area;
·     she was able to regulate her behaviour and was not a violent person; and
·     she lacked self-awareness and was often taking on things that were beyond her control; recalling the time she decided to vigorously garden and ended up poisoning her eye and having to go to hospital.

The Respondent accepts that Ms Stanley’s dysgraphia was fully diagnosed, treated and stabilised during the qualifying period, noting long term significant medical evidence which indicated Ms Stanley had learning difficulties since 1994. The Respondent relied upon the medical evidence which indicated that there was no planned treatment expected to result in any significant functional improvement for this condition.
The Respondent contended that the available evidence indicated the appropriate Impairment Tables to assess the functional impact resulting from Ms Stanley’s dysgraphia were Table 2 – Upper Limb Function and Table 8 – Communication Function.                The Respondent contended that:
·     Ms Stanley’s dysgraphia resulted in a mild functional impairment on activities using hands and arms, as corroborating medical evidence stated that Ms Stanley had difficulty with fine motor coordination which resulted in her inability to tie shoelaces, do up buttons, cut, handwrite and grip; and
·     Ms. Stanley’s dysgraphia resulted in a mild functional impairment with communication, as medical evidence showed that Ms Stanley had difficulty reading text, comprehending what other people say in conversation and conveying her thoughts in writing.
The Tribunal finds that Ms Stanley’s dysgraphia had been fully diagnosed, treated and stabilised during the qualifying period and was having a moderate impact on her functionality. The Tribunal finds that Ms Stanley’s permanent condition resulting in a cognitive functional impairment had been diagnosed by an appropriately qualified medical practitioner. Ms Stanley needed occasional assistance with day-to-day activities; and experienced social and communication difficulties impacting on multiple areas of her life as corroborated by her numerous medical specialists.
Based upon the medical evidence supplied to the Tribunal and the additional evidence provided by Ms Stanley at the hearing, the Tribunal has awarded 10 points under Table 7 of the Impairment Tables in respect of this condition. The Tribunal finds that Ms Stanley’s dysgraphia is having a moderate impact on her brain functionality. Given the nature of Ms Stanley’s condition the Tribunal determined Table 7 correlated to her specific impairment.
Autism spectrum disorder
Dr Rick Kefford (consultant child psychiatrist) and Fiona Walker (social worker) in a report dated 18 February 2002 diagnosed Ms Stanley with autism spectrum disorder (high functioning/Asperger’s syndrome).
Ms Walker in a letter dated 31 May 2004, identified that Ms Stanley would continue to meet the criteria for Asperger’s syndrome as identified by Children’s Mental Health Service in 2002.
Dr Pauline Cundill (general practitioner) in a report for Ms Stanley’s Centrelink application dated 18 August 2017 confirmed that Ms Stanley had been diagnosed with gender dysphoria, anxiety and autism spectrum disorder.
Dr Kasiannan (psychiatrist) in a report dated 13 September 2017 summarised that Ms Stanley’s history and presentation were consistent with autism spectrum disorder including her significant sensory issues, social communication issues and fine motor coordination problems.
Dr Callegari (psychologist) in a report dated 11 February 2020 confirmed that Ms Stanley had previously been diagnosed with autism spectrum disorder and gender dysphoria, and within the context of these conditions she was experiencing significant anxiety symptoms. He reported that Ms Stanley had been approved to start feminising hormone therapy in May 2017 and commenced this treatment. However, he stated that treatment had ceased due to the negative side effects that she was experiencing. Dr Callegari reported that Ms Stanley has had significant difficulty seeking employment due to her autism spectrum disorder, gender dysphoria and anxiety. He was happy to support Ms Stanley’s application as he believed she reached at least 20 points on Table 5 and Table 7 of the Impairment Tables during her DSP assessment period.
Ms Stanley argued vigorously that she had been diagnosed with autism spectrum disorder for many years, from around the age of 12 and had been receiving ongoing treatment for this condition. She stated that both her treating psychologist and psychiatrist had indicated she had significant sensory issues, social communication issues and fine motor coordination problems which were related to her autism spectrum disorder. Ms Stanley said she was receiving ongoing treatment to assist her manage these conditions, but this would not improve her functionality.
The Respondent accepts that Ms Stanley’s autism spectrum disorder was fully diagnosed during the qualifying period, however they contend the condition was not fully treated or stabilised as the medical evidence indicates that further treatment was recommended in order to improve her understanding of her own and other people’s emotions, and to develop better communication skills.
Ms Stanley strongly refuted that this condition was not fully treated or stabilised and that it was a lifelong condition for which she had to learn skills to adapt, which would not result in functional improvement within two years to enter the workforce. Ms Stanley indicated that she had experienced numerous issues in the workplace with both customers and staff, as she could not comprehend people’s emotions or moderate her own behaviour. This resulted in her leaving her employment.
The Tribunal finds that Ms Stanley’s autism spectrum disorder had been fully diagnosed, treated and stabilised during the qualifying period, and was having a moderate impact on her functionality. The Tribunal relies upon the 2002 report of Dr Kefford and Ms Walker which was reinforced by Ms Cook in 2020 where she found: Lita currently meets the criteria for Autism Spectrum Disorder and Dysgraphia. However she is continuing to put in place strategies and alternative technologies to ameliorate the difficulties. But these conditions have been fully diagnosed, treated and are stable. Whilst the Tribunal notes that Ms Cook’s report was outside the qualifying period, the condition and treatment were long-standing and indicated that treatment was ongoing to assist with day-to-day management of Ms Stanley’s condition and not to achieve greater functional improvement.
Based upon the medical evidence supplied to the Tribunal and the additional evidence provided by Ms Stanley at the hearing, the Tribunal finds that Ms Stanley’s autism spectrum disorder is having a moderate impact on her brain functionality. Given the nature of Ms Stanley’s condition, the Tribunal determined Table 7 correlated to her specific impairment.
As Ms Stanley’s autism spectrum disorder was causing common functional impairments like those associated with her dysgraphia, it was therefore inappropriate to assign separate impairment for this condition as it would result in the same impairment being assessed more than once. Therefore, nil points are awarded to this condition.
Gender dysphoria
Dr Cundill’s report dated 18 August 2017, confirmed that Ms Stanley had been diagnosed with gender dysphoria.
Dr Kasiannan’s report dated 13 September 2017, stated Ms Stanley’s presentation was consistent with gender dysphoria:
Current Issues
Lita’s main issue at present is significant anxiety. She gets extremely anxious in social setting and gets confused and is unable to communicate properly, many a [sic] times saying inappropriate things in social conversations. She is unable to fully comprehend what other people say in conversations although she is intelligent. She finds it hard to focus in noisy environments and is particularly sensitive to high pitched noises. She has fine motor coordination difficulties. Her mood is currently stable and she feels well supported by her partner. Lita has been prescribed SSRI’s in the past for anxiety and she had significant blunting of feelings which was distressing and stopped the medication.
Although Lita has worked in the past, she is unable to find work due to anxiety. Sometimes her anxiety is excessive and causes dizziness and nausea for which she takes Stemetil.
Recommendations
1. Hormone therapy for Gender Dysphoria.
2. Occupational therapy assessment and intervention for noise sensitivity and fine motor difficulties.
3. Assessment and intervention for social communication difficulties related to ASD.
4. Individual therapy to address anxiety and to help Lita effectively manage anxiety.
5. I support their application for disability support pension as they [sic] Lita has very limited capacity to seek or sustain employment due to the mental health issues.
The Respondent contended that Ms Stanley’s gender dysphoria was not fully diagnosed, treated and stabilised during the qualifying period as she was continuing to receive treatment. The Tribunal has concurred with this view and therefore has awarded nil points to this condition.
Anxiety
Dr Kasiannan’s report dated 13 September 2017 identified that Ms Stanley’s main issue was significant anxiety.
Dr Cundill’s report dated 18 August 2017 confirmed that Ms Stanley had been diagnosed with anxiety.
Ms Stanley advised the Tribunal that she has some good days and some bad days. She wakes at about 8:00am to have breakfast and she consults her app which describes her activities for morning, noon and night. This prompts her to undertake all her daily activities such as taking a shower, eating or taking medication. She stated that during the qualifying period she was undertaking minimal household activities and the extent of her cooking might have been baked beans on toast. She advised that during a bad day, if she had been awake with night terrors reliving her sexual abuse she would suffer sleep paralysis and it could take hours to even move to the bedside table so that she could take her tablets to assist her to sleep, enabling her to function later or the next day.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables was explored in respect of the functional impact of Ms Stanley’s mental health condition, with a focus on whether or not she has a severe impairment.
Table 5 – Mental Health Function – 20 points
There is a severe functional impact on activities involving mental health function.
(1)       person has severe difficulties with most of the following:
(a)       self care and independent living;
(b)       social/recreational activities and travel;
(c)       interpersonal relationships;
(d)       concentration and task completion;
(e)       behaviour, planning and decision-making;
(f)        work/training capacity.
Ms Stanley gave evidence that during the qualification period:
·     she needed regular support to live independently, was totally dependent upon her phone application which had been suggested by her treating psychologist;
·     she rarely travelled outside of Ballarat and did not engage in regular social recreational activities;
·     fundamentally she has two friends who she catches up with every couple of weeks; she had moved out of home due to issues with her transitioning and was currently living on her own;
·     she had extreme difficulty completing tasks and was unable to concentrate for any length of time;
·     she was unaware of her inappropriate behaviour; she was often made aware after interactions which had forced her to question all of her interactions, and she had difficulty in planning or making decisions; and
·     she did not feel she had any capacity for work or training beyond perhaps one hour a week.
The Respondent contended that Ms Stanley’s gender dysphoria and anxiety are closely linked and were fully diagnosed during the qualifying period. However, the Respondent’s position was that the conditions were not fully treated or stabilised as the medical evidence indicated treatment was planned, including hormone therapy which would improve these conditions. They contended the medical evidence indicated that an improvement in her dysphoria would result in an improvement in her anxiety.
On the balance, the Tribunal finds that Ms Stanley’s anxiety has been fully diagnosed, treated and stabilised based upon the medical evidence supplied to the Tribunal and the additional evidence provided by Ms Stanley at the hearing. The Tribunal has awarded 10 points under Table 5 of the Impairment Tables in respect of this condition, as it finds Ms Stanley’s anxiety had a moderate impact upon her functionality.
The Tribunal finds that whilst Ms Stanley’s gender dysphoria is causing her anxiety, her anxiety also stems from her numerous other complex medical conditions. She has been diagnosed by appropriately qualified clinicians and she has been receiving treatment for her anxiety for many years.
The Tribunal finds that Ms Stanley’s mental health condition had a moderate impact on her functionality as she needed regular support with self-care; rarely travelled; had difficulty with interpersonal relationships; extreme difficulty with concentration and task completion; difficulty with behaviour/planning and decision-making and has had to discontinue work because of interpersonal relationships. The Tribunal awarded 10 points under Table 5 of the Impairment Tables in respect of this condition.
IMPAIRMENT RATING
The Tribunal has found that Ms Stanley has an overall impairment rating of 20 points consisting of 10 points under Table 7 and 10 points under Table 5. Therefore, Ms Stanley satisfies s 94(1)(b) of the Act.
DOES MS STANLEY HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Ms Stanley must not only satisfy the requirement that she has impairments that can be assigned 20 points or more under the Impairment Tables. She must also demonstrate that she has a continuing inability to work. Ms Stanley would be considered to have a continuing inability to work if she has actively participated in a program of support (POS) within the meaning of s 94(3C) of the Act prior to her claim for the DSP, and her impairment is of itself sufficient to prevent her from improving her capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a POS. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the POS requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
Ms Stanley has not been found to have a severe impairment of 20 points under a single table so therefore she must have participated in a POS for the requisite 18 months prior to her claim. The Respondent provided evidence in its materials of a POS calculation which indicated that Ms Stanley had completed a total of 69 days of such a program within the required timeframe and contended she had not satisfied section 7(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Tribunal accordingly found Ms Stanley had not completed a POS and therefore does not satisfy section 94(3C) of the Act.
The Respondent contends that Ms Stanley had a continuing ability to work relying upon the recommendations in the JCA report of 3 April 2018, which stated:
A baseline work capacity of 8-14 hours is recommended due to the functional impacts (anxiety, social interaction, endurance and reliability) of her permanent health conditions. With intervention work capacity of 15-22 hours per week is recommended if interventions for anxiety management are undertaken by Lita matched with Disability Employment Management support to job match and develop effective job seeking and interview skills.
Ms Stanley was of the view that she had no capacity to work during the qualifying period; the Tribunal notes the report of Dr Kasiannan which states I support their application for disability support pension as they [sic] Lita has very limited capacity to seek or sustain employment due to the mental health issues.
The Respondent contended the Tribunal could not rely upon Dr Kasiannan’s opinion to find Ms Stanley had a continuing inability to work as it was in respect of Ms Stanley’s mental health condition which they contended was not fully diagnosed, treated and stabilised during the qualifying period. The Tribunal has found that Ms Stanley’s mental health condition identified as anxiety was fully diagnosed, treated and stabilised during the qualifying period and therefore considered Dr Kasiannan’s report in its determination.
Whilst there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred for the purpose of assessing continuing inability to work, an absolute preference should not be expressed for either report, rather, the preference should be made on a case by case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report and the reliability and depth of the analysis within the report.
Based on the evidence before it the Tribunal has been unable to determine if Ms Stanley has a continuing inability to work to satisfy s 94(2) (a) or (b) of the Act. The Tribunal could not reach a conclusion that Ms Stanley’s impairment was of itself sufficient to prevent her from doing any work or undertaking any training to prepare her for work independently of the POS within the next two years. As such, Ms Stanley does not satisfy s 94(1)(c) of the Act.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that at the time of her DSP application of 15 June 2016, Ms Stanley had the required 20 impairment points to satisfy s 94(1)(b) of the Act. However, as she did not have a severe impairment within the meaning of the Act, she was also required to complete a POS. Without having completed a POS, Ms Stanley cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed. Additionally, the Tribunal was unable to determine if Ms Stanley had a continuing inability to work.
The Tribunal found Ms Stanley to be a credible witness who had attempted to improve her situation by attempting to undertake work and study whilst dealing with her numerous complex issues. Whilst she does not meet the criteria for DSP in respect of this claim, the Tribunal wishes Ms Stanley well and encourages her to reapply for the DSP when she has completed her POS.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

................[sgd]..........................................
Associate
Dated: 11 March 2020

Date of hearing: 12 February 2020

Applicant: In person

Advocate for the Respondent: Ms Cailin Farrell

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 438

11 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Jurisdiction

Date of hearing:	12 February 2020
Applicant:	In person
Advocate for the Respondent:	Ms Cailin Farrell
Solicitors for the Respondent:	Sparke Helmore Lawyers